The Supreme Court of Ohio has affirmed the death sentence of an Ohio prisoner who murdered a fellow inmate at the Warren Correctional Institution in 2019.

The Court unanimously upheld the aggravated murder sentence of Victoria Drain, who pleaded no contest to the charges and requested that a three-judge panel rather than a jury consider her case. During the pendency of the appeal, Drain obtained a legal name change from Joel Drain.

Writing for the Court, Justice Sharon L. Kennedy stated that Drain admitted to planning inmate Christopher Richardson’s death. She wrote the aggravating circumstances far outweigh any mitigating evidence that would lead to a lesser sentence.

“The killing itself was extraordinarily brutal,” the opinion stated.

While agreeing the conviction should stand, Justice Jennifer Brunner dissented on the imposition of the death penalty. She wrote that a new mitigation hearing should be conducted because of Drain’s attorneys’ “failure to investigate and present mitigating evidence.” She stated that “there is a reasonable probability that, but for counsel’s deficient performance, Drain would have been spared the death penalty.”

Inmate Confessed to Plotting Murder
Drain and Richardson were housed in the residential treatment unit of the Warren facility. Drain initially told a state trooper investigating Richardson’s death that she had been planning to kill another unnamed inmate whom she believed was a child molester. Drain had obtained a motor from a large electric fan and was going to hit the unnamed inmate with the motor and then strangle him.

Drain invited Richardson to her cell to get high and then returned to her cell to wait for Richardson. By the time Richardson arrived, Drain said her “adrenaline was just running” in anticipation of killing the unnamed inmate and “just wanted to do something to somebody.” She then decided to kill Richardson and hit him on the head with the fan motor she had concealed in her pocket. After battering Richardson with the fan motor, Drain stabbed him with a pencil and strangled him until Richardson stopped moving.

Drain was relocated to the Ohio State Penitentiary in Youngstown, where she gave an unsolicited statement about Richardson’s murder to a corrections officer that was a different version of events. Drain again indicated she planned to kill a suspected child molester and enlisted Richardson’s help in coaxing her target to an area where she could commit the crime. Drain said Richardson eventually agreed to help, but when Drain raised the subject again, he then refused to get involved. That led Drain to worry that Richardson might report her plan to prison authorities, which is why she killed him.

Prosecutors Seek Death Penalty
Drain was charged with two counts of aggravated murder with death penalty specifications. Drain initially pleaded not guilty. She subsequently waived her right to a jury, and a three-judge panel was selected to hear her case. Drain pleaded no contest to all the counts and specifications before the panel.

The panel conducted a sentencing hearing where Drain presented some mitigating evidence. Her  cousin and her life-long friend each testified, and she made an unsworn statement. However, Drain instructed her attorneys not to present the mitigation evidence contained in defendant’s “exhibit A.” Drain also would not allow counsel to present testimony from her 14-year-old daughter.

The panel convicted her and sentenced her to death. Death penalty sentences receive an automatic appeal to the Supreme Court.

Supreme Court Considered Decision to Plead No Contest
Before the Supreme Court, Drain raised 16 objections, including that her no-contest plea was invalid because it was not given “knowingly, voluntarily, and intelligently.” Her appellate attorneys argued that Drain’s trial attorneys provided ineffective counsel and failed to investigate all relevant mitigating evidence. Because of the attorneys’ failure to present Drain with a full view of the evidence, Drain’s plea was not constitutionally valid, the appellate attorneys maintained.

Justice Kennedy explained that to establish her attorneys’ assistance was ineffective, Drain had to show her lawyers’ performance fell below what is reasonably expected of an attorney and that, if not for the errors made by the lawyers, the outcome of the proceedings would have been different.

Drain’s trial lawyers’ performance did not contribute to her no contest plea, the Court concluded. The Court noted that Drain’s lawyers advised her not to plead no contest, but she repeatedly insisted on the plea and to leaving it to the three-judge panel to determine the outcome.

The Court rejected the claim that an inadequate investigation led to Drain’s decision. The opinion noted that Drain’s resolve to plead no contest was consistent. She repeatedly told the trial court she wanted to plead no contest and even accused the judges of prolonging the proceedings by not promptly accepting her plea. She testified that she was mentally competent to decide and told the judges a psychologist hired by her attorneys to examine her would also testify to her competency.

The Court noted that the record showed that the attorneys performed a “substantial investigation,” which included reports from psychologist Jenny O’Donnell and a mitigation specialist. The mitigation specialist interviewed Drain’s mother, brother, cousin, ex-wife, and two children. The attorneys also obtained 1,900 pages of prison, youth services, educational, and court records, which were part of exhibit A.

Drain’s plea was not the result of inadequate information from her attorneys, and her decision to plead no contest was voluntary, knowing, and intelligent, the Court concluded.

Additional Claims of Attorney Deficiencies Examined
Drain’s appellate counsel claimed that defense counsel rendered ineffective assistance as to the penalty phase of the trial proceeding. Principally, because they failed to present the 1,900 pages of evidence contained in exhibit A.

The Court noted that after the defense presented its penalty-phase evidence and Drain made her unsworn statement, defense counsel informed the panel that they had more evidence, which Drain had forbidden them to use.

Despite Drain’s attempt to prevent the trial court from considering exhibit A, the defense attorneys asked and received permission to introduce the exhibit under seal. The lawyers understood the request would prevent the information from being reviewed by the trial court, but the lawyers stated they wanted the information on the record for future consideration.

Before the Supreme Court, Drain argued she did not instruct her trial attorneys to completely waive all the information they uncovered, but only to omit evidence about her childhood and not allow her daughter to testify. The Court stated this assertion was “inconsistent with the record.” Defense counsel represented to the Court that Drain had instructed them not to present defendant’s exhibit A and she did not protest or contradict counsel’s statement in any way.

The Court noted that Drain also told the panel she was not making any “far-fetched medical mental health excuses” and did not intend to justify her behavior based on any “mental defects.” The opinion stated Drain’s statements refuted her contention that counsel was “prevented only from presenting testimony by Drain’s daughter and evidence of Drain’s childhood.” Rather, she made a specific point of refusing to present any “medical mental health excuses.”

Based on the investigation of the crime scene, and Drain’s admission to the crimes, the Court found nothing that the attorneys could offer would have led the panel to decide against issuing a death sentence, the opinion stated.

Supreme Court Conducted Independent Review of Sentence
In addition to finding no errors in the trial proceedings, the Court conducted its own review of the aggravating and mitigating circumstances to determine if the death penalty was warranted.

The Court noted Drain suffered “traumas” as a child, including spending 20 days in solitary confinement as a 13-year-old juvenile offender. O’Donnell, the psychologist, conducted several interviews with Drain and examined her prison records, which indicated she had been diagnosed with gender dysphoria, posttraumatic stress disorder, borderline personality, and antisocial personality disorder.

O’Donnell stated that Drain told her that some of those diagnoses were made when she was “manipulating” the system to receive benefits. O’Donnell concluded that Drain did not suffer from a severe mental illness or an intellectual disability at the time she was evaluated. O’Donnell determined Drain was competent to stand trial.

The opinion stated that taken as a whole, Drain’s mitigation “deserves significant weight.”

“But the aggravating circumstances in this case are so grave that they outweigh the mitigating factors beyond a reasonable doubt,” the Court concluded.

Dissent Called for New Mitigation Hearing
Justice Brunner called for remanding the case for a new mitigation hearing. Alternatively, she said, the high court should not determine Drain’s ineffective assistance of counsel claims in this appeal, since no post-conviction motion had yet been filed, which would give the Court the opportunity to review evidence outside of the appellate record and a trial court the opportunity to determine whether Drain’s trial lawyers had been ineffective in the mitigation phase of the trial.

Justice Brunner wrote that Drain’s attorneys had ample evidence of significant trauma and mental illness, including gender dysphoria involving self-harm and other diagnoses, such as borderline personality disorder, antisocial personality disorder, schizophrenia, and posttraumatic-stress disorder. The dissent stated that Drain’s attorneys’ mitigation investigation fell below professional norms, in part because counsel failed to investigate certain mitigating matters “that were readily apparent.” While Drain prevented her attorneys from introducing some mitigating evidence, the lawyers were not prevented from providing all the evidence they had gathered regarding her conditions, the dissent stated. Further, additional evidence going to how Drain’s mental health issues impacted her criminal behaviors should have been presented, the dissent noted.

“If her attorneys presented that evidence and if they had conducted an adequate investigation for additional evidence, there is a reasonable likelihood that she would have been spared a death sentence,” the dissent stated.

Justice Brunner wrote that if the Court would not grant a new hearing, it should refrain from addressing the ineffective assistance of counsel claims until Drain files a postconviction relief petition. That petition would allow Drain to introduce new evidence, which could explain how her attorneys were ineffective and give the Court more information to decide the matter, she concluded.

2020-0652. State v. Drain, Slip Opinion No. 2022-Ohio-3697.

View oral argument video of this case.

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